District files motion to dismiss lawsuit over treatment of nonbinary student

The School District of Rhinelander is seeking immediate dismissal of a federal lawsuit filed by a mother and her nonbinary child alleging that Rhinelander school officials “repeatedly refused to recognize or respect (the child’s) gender identity” and (undertook) “a series of discriminatory and highly stigmatizing actions against them based on their sex, gender identity, and nonbinary status.”

Brooke Johnson-Paquette filed the lawsuit Oct. 31 in the U.S. District Court for the Western District of Wisconsin on behalf of her child, a former Rhinelander High School student. The River News is not naming the juvenile plaintiff who, the complaint notes, has completed high school by taking courses through another school district and no longer resides in the community.

According to the complaint, the child was “assumed to be a girl at birth” but has identified as nonbinary since approximately 2018 and uses they/them pronouns.

While the child’s family supports the child’s “right to live and be treated consistent with that gender identity” defendants School District of Rhinelander Board of Education, Superintendent Eric Burke, and their agents, employees, and representatives, have repeatedly refused to recognize or respect (the child’s) gender identity and have taken a series of discriminatory and highly stigmatizing actions against them based on their sex, gender identity, and nonbinary status,” the complaint alleges.

The complaint accuses the district of:

•  Denying (the child) equal access to restrooms at school and requiring them to use a single-occupancy restroom; 

• Intentionally and repeatedly using their birth name and incorrect pronouns, and failing to appropriately inform substitute teachers and other staff members of their preferred name and pronouns, resulting in those staff referring to (the child) by their birth name or incorrect pronouns in front of other students; 

• Ignoring (the child’s) complaints of multiple incidents of sex-based harassment due to their gender identity and labeling student-on-student harassment as “peer harassment” instead of the proper designation of sex-based harassment;

• Failing to investigate or document the sex-based discrimination and harassment experienced, and reported to staff, by (the child);

• Failing to provide equal access to educational opportunities by denying (the child) access to in-person class instruction, and instead forcing (the child) to utilize online self-directed learning materials; 

• Violating school district policies on reporting, investigating, and documenting sex-based discrimination occurring within the school district; 

• Failing to train employees on district policies and procedures related to nondiscrimination policies;

• Failing to involve the district’s Title IX Coordinator in nearly all the sex-based harassment experienced and reported by (the child).”

Specifically, the complaint alleges that a teacher made “snide” comments to the child regarding their name, another student was caught trying to take photos of the child without permission, and a classmate used a derogatory slur after “bumping into” the child in a school hallway.

While the classmate admitted to the conduct, the complaint states the incident was documented as “peer mistreatment” and not sex-based harassment in school records.

Through these actions, defendants have “discriminated against (the child) on the basis of sex, including on the basis of their gender identity, nonbinary status, and nonconformity to sex-based stereotypes, in violation of Title IX of the Education Amendments of 1972 and on the basis of sex and nonbinary status in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution,” the complaint alleges. “Defendants’ actions have denied (the child) full and equal access to the School District of Rhinelander’s education program and activities on the basis of (the child’s) nonbinary identity and sex.”

The complaint notes that the Rhinelander school district receives federal funds from the U.S. Department of Education and the U.S. Department of Health and Human Services, and, as such, is subject to Title IX of the Education Amendments of 1972, which prohibits sex discrimination against any person in any education program or activity receiving federal financial assistance. The Board is “vicariously liable for the acts or omissions of its employees, agents, and representatives, including those of the other Defendant Burke and other school administrators, staff, and volunteers,” the complaint states.

As a result of the actions of the district, district staff, and students (the child’s) family suffered a significant financial loss as well as extreme stress, anxiety, and fear, the complaint alleges. 

A declaratory judgment and damages are requested.

In a 39-page brief filed Jan. 2 in support of its motion to dismiss the case, the school district alleges the plaintiffs do not have a viable legal claim.

“A plaintiff’s obligations to provide the ‘grounds’ of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do,” the district contends.

In the brief, the district also alleges that the plaintiff “cannot show that declaring to be nonbinary is protected as ‘sex’ under Title IX.

“‘Non-binary’ is an umbrella term that includes those whose identity falls outside of or between male and female identities; as a person who can experience both male and female, at different times, or someone who does not experience or want to have a gender identity at all,” the brief explains. “Plaintiff alleges that as a nonbinary person, things like dividing classes into ‘boys and girls’ is discriminatory. But if a nonbinary person is neither male nor female, then it is hard to understand how Title IX’s prohibition on sex-based discrimination can extend to one’s nonbinary status.”

“Declaring that one is neither gender and then being treated like every other male and female student is not punishing one for being gender non-conforming,” the school district’s attorneys added.

Even if Title IX applies to a student’s nonbinary status, the plaintiffs do not have an actionable claim of direct discrimination, the district contends.

“Plaintiff has never been treated differently because Plaintiff’s sex does not align with the male or female sex,” the brief states. “Plaintiff has been treated the same as all other students, male or female.”

The district also disputes the argument that the child was subjected to a hostile educational environment due to the behavior of other students and some staff members.

“As a threshold matter, none of these specific actions are severe or pervasive enough, alone or in conjunction, to create a hostile educational environment,” the district contends. “A few instances of students making isolated insensitive comments does not rise to the level of severe and pervasive harassment. Simple teasing or being called an offensive name is not enough to constitute harassment because ‘in the context of student-on-student harassment, damages are available only where the behavior is so severe, pervasive, and objectively offensive that it denies its victims the equal access to education. Federal law does not protect students from commonplace schoolyard altercations, including name-calling, teasing, and minor physical scuffles.”

Even if the “isolated incidents” could rise to the level of a hostile educational environment, the district argues it’s responses to the reports of peer-on-peer harassment were not unreasonable or deliberately indifferent.

“The prevailing case law establishes that a school is not deliberately indifferent as long as it takes ‘some’ affirmative steps to investigate and remediate the situation,” the brief notes. “In contrast, the Supreme Court has indicated that deliberate indifference to harassment would require the school to ‘deliberately ignore requests for aid’ and ‘know[ingly] refus[e] to take any action.’ In other words, ‘courts have found the issue of deliberate indifference to preclude dismissal . . . when the school made no effort whatsoever to either investigate harassment, stop it, or discipline the offending student.”

“A prompt investigation into allegations of harassment evidences reasonable action,” the brief continues. “Likewise, speaking to a student about name calling, involving guidance counselors, reducing contact between students, and asking students to stay away from each other have all been held to show that a school’s response to harassment was not clearly unreasonable. Communicating with the parents of the students who committed acts of harassment and the parents of the victim is evidence that a school district did not act with deliberate indifference.”

“School districts are not required to prevent peer harassment or to take any particular disciplinary action in response to harassment,” the district’s attorneys stressed. “Moreover, a school does not act unreasonably just because a plaintiff feels that the school’s disciplinary decision was insufficient to resolve their concerns.”

“The Supreme Court has set a high bar for plaintiffs seeking to hold schools and school officials liable for student-on-student harassment. School officials are given broad latitude to resolve peer harassment and are liable only in ‘certain limited circumstances,” the brief states.

The filing ends with a request for dismissal of the lawsuit.

“The District respectfully requests that the Court grant its motion to dismiss for failure to state a claim upon which relief can be granted and dismiss Plaintiff’s Complaint in its entirety and with prejudice,” the brief concludes.

A telephone status conference in this case, before Magistrate Judge Stephen L. Crocker, is scheduled for Feb. 8.

Heather Schaefer may be reached at [email protected].